30 Oct 2009

Sending a strong message against the practices adopted by the Archeological Survey of India in a decision delivered today, the Delhi High Court has concluded that the authority meant to protect and perverse monuments of historical and national importance has itself been violating the law by allowing people to construct in the vicinities or protected monuments. Dealing with a case relating to challenge made by a property-builder on denial of permission for construction at Nizamuddin East of Delhi, hosting Humayun‟s tomb in its vicinity, the High Court held that ASI had no power to consider grant of waiver/deviation from the blanket prohibition of construction near such protected sites.

Recording the prominence and importance of Humayun‟s Tomb, the decision of the High Court states as under;

Not very far from this Court is located the Humayun‟s Tomb. It is a historical monument. It is a mausoleum built for the Mughal emperor Humayun who ruled between 1530 and 1540 and again from 1555 till 1556 when his son Akbar took over the reins. The construction of the mausoleum was commenced by Humayun‟s senior widow Hamida Banu Begum also known as Haji Begum in 1565, nine years after his death. A Persian architect Mirak Mirza Ghiyath was commissioned to design and build it. It is stated to exemplify a synthesis of Persian and Indian traditions of architecture. The arched alcoves, corridors and the high double dome signify the Persian influence and the kiosks which give it a pyramidal outline from a distance are attributed to the Indian influence. It is believed to have inspired the design of the Taj Mahal, a monument built many years later in Agra by Humayun‟s great grandson Shahjahan.

Humayun's tomb is square red sandstone double-storeyed structure that rises from a 7 m. high square terrace, raised over a series of cells accessible through arches on each side. Externally on each side of the tomb are elevations decorated by marble borders and panels. Around the high marble double dome in the centre are pillared kiosks. The tomb is a beautiful sight to behold, even when viewed from a distance. The nearly 450 year old Humayun's tomb is a major tourist attraction in Delhi. It has been declared as a world heritage monument. It is a protected monument within the meaning of the Ancient Monuments Archaeological Sites and Remains Act, 1958 and the Ancient Monuments Archaeological Sites and Remains Rules, 1959. Consequent to a notification issued on 16th June 1992 by the central government, an area of 100m surrounding the Humayun‟s tomb has been declared a “prohibited area” within which no construction activity is permitted.

The matter was before the Court in view of the challenge made by an advocate to the permission granted by the Archaeological Survey of India to a construction company for reconstruction of a property despite the fact that the said property was located within 100 m. of Humayun‟s Tomb. This permission had been granted in terms of the approval by an internal Expert Advisory Committee constituted by the ASI which allowed reconstruction subject to specified limits. Retorting to the petition, ASI argued that the the petitioner advocate himself was staying on a property which had been 'constructed illegally without taking any permission from the ASI as required by law and as such, the entire building was liable to be demolished'. On this ground itself the petition was liable to be dismissed, it was argued, as the "petition was motivated and was essential to stop construction in the building adjacent to that of the neighbour and was therefore an abuse of the process of Court."

ASI also justified its stand of granting the permission to the construction company argued that;

in view of the fact that there were a number of cases where persons desired to construct/reconstruct upon their property falling within the 100 m. Zone of a protected monument, an Expert Advisory Committee (Committee) comprising eminent experts was constituted to aid and advise the Director General, ASI for dealing with such cases. The Committee was headed by the Director General, ASI and a renowned historian and archaeologist, an expert in urban planning, and a leading expert on the history of Delhi. ASI explained that the Committee “examines all proposals where a relaxation of the rule prohibiting construction within the 100 mts. area is asked for, and decides on a case to case basis such applications.” It was pointed out that the case relating to the construction at the said property was decided by the Committee at its meeting held on 22.1.2009. The ASI defended the permission granted to the appellant herein for carrying on construction in the said property. It was submitted that Rule 37 of the Rules provided for an appellate mechanism and since the Committee had examined the proposal and opined that the proposed construction did not threaten the integrity of the monument, did not affect the access of the publicto the monument or otherwise impair the skyline in relation to the monument, permission was granted “as per the norms.” It was further stated that “there is no threat or danger of any kind to the monument of Humayun‟s Tomb on account of the construction ...

Examining the legal sustainability of these arguments, the High Court asked the ASI explain the basis for setting up and for the functioning of the Committee which had been set up by it to allow deviations from the general norm of complete prohibition of construction within 100 meters of the protected monument. However not in agreement with the stand adopted by ASI, the High Court found that ASI had misinterpreted the law declared by earlier decisions to observe;

We do not find this explanation to be acceptable in law. Clearly, the ASI is contradicting the very stand taken by it before the Supreme Court in the SLP referred to hereinbefore. There the ASI has taken the stand the Notification dated 16.6.1992 prohibiting any construction within a range of 100 m. from a protected monument is sacrosanct and ought not to be diluted at all. Therefore, for the ASI now to set up a Committee to consider relaxation of that very norm on a case to case basis is not only unacceptable as being contradictory to its own stand, but is also clearly impermissible in law. As of today, the Notification dated 16.6.1992 prohibiting construction within a range of 100 m. from a protected monument is in force. That Notification has not been diluted one bit. To us it seems plain that the ASI is misreading the directions contained in the judgment of the Division Bench of this Court in Narendra Anand. If the sentence in question is read as a whole, it is apparent that what the Division Bench meant was that as and when the Central Government reviews the position and considers relaxing the norm stipulated in the Notification dated 16.6.1992, it should also consider setting up of a mechanism whereby prohibition is imposed or relaxed on a case to case basis. It is indeed strange that while on the one hand, the ASI has urged before the Supreme Court that there should be no dilution of the aforementioned Notification and the Supreme Court has on its urging stayed the direction of this Court asking the Central Government to review the said Notification, the ASI has itself set up a Committee to grant permissions in dilution of the said Notification. The stay granted by the Supreme Court requires the notification dated 16.6.1992 to be given full effect to without any relaxation of the norm stipulated therein. The ASI is charged with the statutory duty to ensure this. Its actions since 8.6.2006 have unfortunately been to the contrary.

Declaring the very constitution of a Committee to be illegal, the High Court declared "We also have no doubt whatsoever that the setting up of the Committee by the ASI, with the approval of the Union Minister for Culture and Tourism , Government of India for advising the DG, ASI on the grant of permission for construction/renovation in a prohibited area was wholly without any legal basis. The appellant has, along with the memorandum of appeal, enclosed a Notification dated 20.7.2006 purportedly issued by the ASI constituting the Committee with the DG, ASI as its Chairman. We were, however, informed by Mr. Tripathi, learned counsel appearing for the ASI that the said Notification was never in fact issued." ... "As far as the present case goes, the ASI hardly needs to be reminded that every `reconstruction‟ of a building afresh, after pulling down an existing one, would involve activity that might endanger a 450 year old protected monument. That concern should be uppermost in the priorities of the ASI."

Incidentally the High Court noted the decision of the Supreme Court in an earlier case [Rajeev Mankotia v Secretary to President of India AIR 1997 SC 2766] wherein the apex court had explained the rationale of protecting such heritage monuments as under;

It would, therefore, be manifest that all ancient and historical monuments and all archaeological sites and remains or any structure, erection or monument or any tumulus or place of interment shall be deemed to be ancient and historical monument or archaeological sites and remains of national importance and shall be so declared for the purpose of Ancient Monuments Act it they have existed for a century; and in the case of a State monument, of State importance covered by the appropriate State Act. The point of reference to these provisions is that an ancient monument is of historical, cultural or archaeological or sculptural or monolithic or artistic interest existing for a century is of national importance or of State importance. In other words, either of them are required and shall be protected, reserved and maintained as national monuments or State monuments for the basis which not only gives pride to the people but also gives us insight into past glory of our structure, culture, sculptural, artistic or archaeological significance, artistic skills and the vision and wisdom of our ancestors, which should be preserved and perpetuated so that our succeeding generations learn the skills of our ancestors and traditions, cultural and civilisation. They would have the advantage to learn our art, architecture, ascethetic tastes imbibed by the authors of the past and to continue the same tradition for the posterity. Preservation and protection of ancient monuments, is thus the duty of the Union of India and the State Government concerned in respect of ancient monuments of national importance or those of State importance respectively to protect, preserve and maintain them by preserving or restoring their original conditions.

... We avail this opportunity to direct the Government of India to maintain all national monuments under the respective Acts referred to above and to ensure that all of them are properly maintained so that the cultural and historical heritage of India and the beauty and grandeur of the monuments, sculptures secured through breathless and passionate labour workmenship, craftsmanship and the skills of the Indian architects, artists and masons is continued to be preserved. They are pride of Indians and places of public visit.

Being of such view, the High Court not only set aside the concessions allowed by the Committee but also directed the ASI "to forthwith stop accepting and processing any application for grant of permission for construction/renovation of any structures or buildings in a prohibited area and to also stop accepting appeals against any orders that may have been issued refusing such permissions. The ASI will also take steps within a period of four weeks, to reconsider all permissions granted pursuant to the setting up of the Committee and take consequential steps, after giving the affected parties an opportunity of being heard."

Have a look at the decision. However, if the High Court is correct in the interpretation of law, what happens to all those protected monuments which are are regularly violated to provide for public conveniences (such as roads, rail-lines, metro etc.)? Wouldn't such acts also be in violation of the law, one is only left to ponder !!!

No comments:

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Sharing this "vision for a better-world" and serving to the Humanity, this blog is a small attempt by a group of like-minded lawyers to spread the word on "LAW" across the society.

Disclaimer:

In any event, no part of the information published on this blog is intended to be served or considered as legal advice. The publishers shall not be liable for any action taken on the basis of information published on this blog.

Dear Reader,

You can send us your comments, messages, criticism or even just a simple hello at "guest.legalperspectives [at] gmail [dot] com".

Thanks,

Law-in-Perspective Team

Dear Reader,

If you are looking to access the decision, kindly log in with your gmail account. Without gmail account the decisions cannot be accessed.